Constitutional Law Prof Blog

District Court Holds Military Commission Judge, Prosecutors, Marshall Immune from Suit by Former Officer

Steven D. Schwinn, UIC John Marshall Law School

Judge James E. Boasberg (D.D.C.) dismissed portions of a case brought by a former Guantanamo military commission officer against a military commission judge and prosecutors and U.S. marshals for issuing and aggressively enforcing a subpoena against him. At the same time, the court transferred the plaintiff's Federal Tort Claims Act claim arising out of the same events to the District of Massachusetts.

The ruling means that Gill's claims against the individuals is dismissed, but his claim against the government will proceed in Massachusetts.

The case, Gill v. United States, arose when the chief prosecutor at Guantanamo Bay issued a subpoena to Stephen Gill, a former legal advisor on Abd Al-Rahim Hussein Muhammed Al-Nashiri's military commission case and current civilian, to testify in that case. Gill sought relief under military rules, but he received no response. Upon the request of the prosecutors in the case, military commission judge Colonel Vincent Spath then issued a "warrant of attachment" compelling Gill's testimony and commanding U.S. marshals to procure Gill's presence in Virginia to testify remotely.

Marshals then stormed Gill's home in Massachusetts, arrested and shackled him, searched his home, and forcibly transported him to Virginia. 

Gill filed a claim with DOJ under the FTCA. DOJ didn't respond, so he sued. He also sued Spath, the prosecutors, and the marshals under Bivens, arguing that they violated his Fourth Amendment rights.

The district court dismissed Gill's Bivens claims, holding that the judge, prosecutors, and marshals enjoyed immunity. As to the judge, the court held that Spath served in a quasi-judicial role, and thus enjoyed absolute immunity. The court rejected Gill's argument that Spath issued the warrant in "complete absence of all jurisdiction" based on the D.C. Circuit's decision to vacate every single one of Spath's orders between November 2015 and April 2019 because of a conflict of interest. The court ruled that "even if Spath exceeded his grant of judicial authority, he did not act in the clear absence of jurisdiction." As to the prosecutors, the court held that they, too, were entitled to absolute immunity, because they were acting in their advocacy, not investigative or administrative, roles.

In any event, the court held further that all defendants were entitled to qualified immunity, because they didn't violate "clearly established" Fourth Amendment rights.

The court transferred Gill's FTCA claims and request for declaratory relief to the District of Massachusetts.

Chief Justice Stays D.C. Circuit Mandate to Release Trump Tax Records

Steven D. Schwinn, University of Illinois Chicago John Marshall Law School

Chief Justice John G. Roberts, Jr., issued an order today staying the mandate of the D.C. Circuit to Mazars to release President Trump's tax records.

Recall that the D.C. Circuit last week denied en banc review of a three-judge panel ruling that the House Committee on Oversight and Reform had authority to issue its subpoena for President Trump's financial records to his accounting firm, Mazars.

Chief Justice Roberts's brief order simply stayed the D.C. Circuit ruling "pending receipt of a response, due on or before Thursday, November 21, 2019, by 3 p.m. ET, and further order of the undersigned or of the Court." (The order is not a ruling on the merits, and does not foretell what the Court might do.) So we'll get more information on Thursday . . . .

Ninth Circuit Bars Enforcement of ACA Contraception Exemption Rules

Steven D. Schwinn, University of Illinois John Marshall Law School

The Ninth Circuit this week affirmed a district court's preliminary injunction against agency rules that categorically exempt certain organizations from the Affordable Care Act's contraception requirement. 

The ruling is a blow to the administration's efforts to side-step the ACA's contraception requirements for religious groups. We previously posted on the case here.

The case, California v. U.S. Dep't of Health & Human Services, tests HHS's final rules that exempt certain entities from the ACA's contraception-coverage requirement. The court upheld a district court ruling that the final rules likely violated the Administrative Procedure Act.

The ACA provides that group health plans and insurance issuers "shall, at a minimum provide coverage for and shall not impose any cost sharing requirements for . . . with respect to women, such additional preventive care and screenings . . . as provided for in the comprehensive guidelines supported by the Health Resources and Services Administration . . . ." HHS previously exempted group health plans of certain religious employers, like churches. It also had previously provided for an accommodation for certain nonprofits that had a religious objection: those groups merely had to tell HHS that they objected (then HHS would inform the organization's insurer that it had to provide contraceptive care for the organization's employees without any further involvement of the organization). HHS later also exempted certainly closely-held for-profit corporations (after Hobby Lobby) and modified the exemption-trigger to require objecting organizations merely to notify HHS in writing of its objections (after Wheaton College).

But the Trump Administration went a step farther. It issued rules that categorically exempt entities "with sincerely held religious beliefs objecting to contraception or sterilization coverage" and "organizations with sincerely held moral convictions concerning contraceptive coverage." The rules meant that organizations that might previously have sought and received a waiver would be categorically exempt on their own say-so.

The Ninth Circuit ruled that these rules likely violated the APA. In short, the court said that HHS didn't have authority under the ACA to create categorical exemptions:

The statute grants HRSA the limited authority to determine which, among the different types of preventative care, are to be covered. But nothing in the statute permits the agencies to determine exemptions from the requirement. In other words, the statute delegates to HRSA the discretion to determine which types of preventative care are covered, but the statute does not delegate to HRSA or any other agency the discretion to exempt who must meet the obligation.

The court rejected the government's claim that it issued the rules to harmonize the ACA with the Religious Freedom Restoration Act. The court questioned whether the RFRA even gave the government the authority to determine a violation and then act against federal law to effect it. And it went on to say that the accommodation didn't violate the RFRA, anyway. (Recall that the Court dodged this issue in Zubick.) 

The dissent argued that the court lacked jurisdiction in light of a nationwide injunction issued by the Eastern District of Pennsylvania. The court responded at length, but acknowledged that it's an open question whether a federal court's nationwide injunction strips other federal courts of jurisdiction in a more limited case.

 

White House Blasts Impeachment Inquiry, Says it Won't Cooperate

Steven D. Schwinn, University of Illinois Chicago John Marshall Law School

White House Counsel Pat Cipollone sent a scathing letter today to House leadership blasting the impeachment inquiry and stating that the White House won't cooperate. Given White House intransigence so far, it's not clear that the letter will really change anything on the ground.

Cipollone cited two flaws: the process lacks due process protections, and the House has no "legitimate basis" for the inquiry.

As to due process, Cipollone claims that an impeachment inquiry requires due process, and that the House process falls short:

To comply with the Constitution's demands, appropriate procedures would include--at a minimum--the right to see all evidence, to present evidence, to call witnesses, to have counsel present at all hearings, to cross-examine all witnesses, to make objections relating to the examination of witnesses or the admissibility of testimony and evidence, and to respond to evidence and testimony. Likewise, the Committees must provide for the disclosure of all evidence favorable to the President and all evidence bearing on the credibility of witnesses called to testify in the inquiry. The Committees' current procedures provide none of these basic constitutional rights.

Cipollone also complained that the committees' ranking members lack subpoena power, and that "the Committees have also resorted to threats and intimidation against potential Executive Branch witnesses."

The impeachment process, of course, is a nonjusticiable political question under Nixon v. United States. So we don't have the Supreme Court's say-so as to what, if any, measures of due process are required. In the case that Cipollone cites as support for his claim that impeachment requires due process, Judge Hasting's impeachment, Hastings raised similar due process complaints about his trial in the Senate. But in a ruling not cited by Cipollone, the district court ultimately dismissed Hasting's complaint as raising a nonjusticiable political question under Nixon, and therefore did not touch on any process that might be due in an impeachment.

Cipollone's claims don't come in the context of a court case, though, so the political question doctrine doesn't foreclose them. Instead, they may cleverly put House Democrats in an awkward spot. The only practical way that House Democrats can get White House cooperation is to go to court; but if they seek to enforce a subpoena issued in an impeachment inquiry in court, the White House will surely claim that the case is a nonjusticiable political question under Nixon. Regardless of merits of that claim, unless the House can get the courts to enforce their subpoenas, the House will have to base its articles of impeachment only on evidence that it can obtain independent of White House cooperation, and, of course, obstruction. This may make it even more likely (if that's possible) that the House will impeach, but it also may make it even less likely (if that's possible) that the Senate will convict.

As to the lack of a "legitimate basis" for the inquiry, Cipollone argues that President Trump's call to President Zelenskyy "was completely appropriate," that "the President did nothing wrong," and therefore that "there is no basis for an impeachment inquiry." This echoes the familiar (and tenuous) constitutional claim that we've heard from the White House in nearly every congressional investigation--that the House lacks a "legitimate legislative purpose." It also begs the question: the whole purpose of an impeachment inquiry, it seems, is to get more evidence to discover whether there's a basis for going forward with impeachment. The House needs information from the executive branch to help it make that determination.

Cipollone's letter is a stunning rebuke. But in the end, it's not clear that it's much of a game-changer, only because the White House hasn't much cooperated so far, anyway.

District Court Tosses Trump Suit to Protect Taxes

Steven D. Schwinn, University of Illinois Chicago John Marshall Law School

Judge Victor Marrero (S.D.N.Y.) today dismissed President Trump's lawsuit that sought to halt a state grand jury subpoena issued to Mazars USA for Trump organization financial documents, including the President's tax returns. We posted most recently here.

The ruling deals a blow to President Trump's efforts to protect his tax returns from disclosure, and to halt any state criminal process against him. But it may be temporary: the Second Circuit immediately stayed the ruling pending expedited review; and whatever the Second Circuit says, this case seems destined for the Supreme Court.

The district court ruled that President Trump's suit was barred by Younger abstention, and that his constitutional claim likely failed on the merits.

As to Younger abstention, which requires federal courts to abstain from intervening in pending state court proceedings under certain circumstances, the court said that the grand jury subpoena was part of a pending state criminal proceeding (despite a circuit split on the question), that the state proceeding implicates important state interests, and that the state proceeding affords President Trump plenty of opportunities to raise his constitutional claims. The court rejected the President's claims that the state process was in bad faith or merely designed to harass him, and that the case raised extraordinary circumstances.

As to the underlying merits, which the court addressed "so as to obviate a remand" on President Trump's motion for a preliminary injunction if the Second Circuit overrules the abstention holding, the court flatly rejected the President's claim of absolute presidential immunity from all state criminal processes. The court said that it "cannot square a vision of presidential immunity that would place the President above the law with the text of the Constitution, the historical record, the relevant case law, or even the DOJ Memos on which the President relies most heavily for support." The court, citing Clinton v. Jones, said that the Supreme Court would likely reject the President's absolute, categorical approach to immunity in favor of a functional approach that "take[s] account of various circumstances concerning the appropriateness of a claim of presidential immunity from judicial process relating to a criminal proceeding" and to balance the competing interests in working out the immunity question.

The case now goes to the Second Circuit on an expedited basis. Again: the Second Circuit stayed the district court's ruling, which means that President Trump's federal case challenging the state subpoena is still alive. Whatever happens at the Second Circuit, this case will almost surely go to the Supreme Court.

New York DA Pushes Back Against Trump's Claim of Absolute Immunity

Steven D. Schwinn, University of Illinois Chicago John Marshall Law School

New York DA Cyrus Vance, Jr., yesterday filed a motion to dismiss President Trump's federal lawsuit that seeks to shut down the state grand jury proceeding.

Recall that the state grand jury issued a subpoena to Mazurs USA for financial and tax records of a number of New York entities and individuals, including President Trump. President Trump then sued in federal court to halt the state process, arguing that he is absolutely immune from any criminal process. (His argument wasn't limited to just state criminal process or any criminal prosecution; instead, he argued that he is absolutely immune from any criminal process.)

Vance argues that 28 U.S.C. sec. 2283 and Younger abstention compel the federal court to dismiss the case. Section 2283 provides that "[a] court of the United States may not grant an injunction to stay proceedings in a State court except as expressly authorized by Act of Congress, or where necessary in aid of its jurisdiction, or to protect or effectuate its judgments." Similarly, Younger abstention requires a federal court to abstain from interfering in certain state-court proceedings.

Vance argues that the federal court should abstain from ruling on President Trump's constitutional claims until the state courts have a chance to do so. He says that there's no "special circumstances suggesting bad faith, harassment or irreparable injury that is both serious and immediate" that would justify an exception to the general abstention principle.

Moreover, Vance argues that President Trump failed to show irreparable harm and is wrong on the merits. As to harm, Vance says that subpoenaed records would be destroyed if the courts later rule the Mazurs subpoena invalid, and that the President's claims that he'd be distracted by the state criminal process is belied by the President's handling of other criminal processes. As to the merits--the President's sweeping claim of absolute immunity from any criminal process--Vance writes, "As the President's own papers make plain, no authority exists to support such a sweeping claim of immunity, which makes a showing of likelihood of success on the merits impossible."

Second Circuit Says Emoluments Suit Against Trump Can Move Forward

Steven D. Schwinn, UIC John Marshall Law School

The Second Circuit ruled today in CREW v. Trump that a case alleging that the President violated the Foreign and Domestic Emoluments Clauses can move forward. The ruling rejects the President's arguments that the plaintiffs lack standing and that they fall outside the zones of interests of the Emoluments Clauses. It also rejects the district court's holdings that the case isn't ripe, and that it raises a nonjusticiable political question.

The ruling means that the case can go forward. It says nothing on the merits--whether President Trump actually violated the Emoluments Clauses. Still, it's a significant victory for the plaintiffs. It also splits with the Fourth Circuit, which dismissed an emoluments case in July for lack of standing.

The plaintiffs in the case, Eric Goode, a restauranteur and hotelier, and the Restaurant Opportunities Center United ("ROC"), a non-partisan, member-based organization of restaurants and restaurant workers, alleged that President Trump's properties siphon off business from the plaintiffs' operations when foreign and domestic government entities choose the President's properties over the plaintiffs' in order to enrich the President and gain his favor--all in violation of the Foreign and Domestic Emoluments Clauses. In particular, the plaintiffs allege (1) that they compete with the President's properties, (2) that the President implicitly solicits the patronage of government officials and acknowledged that, in making decisions, he favors governments that patronize his businesses, and (3) that governments have taken note of this, and been influenced by it, in deciding which properties to patronize.

The district court dismissed the case, holding that the plaintiffs lacked standing, that they fall outside the zone of interests of the Emoluments Clauses, that their claims aren't ripe, and that the case raises nonjusticiable political questions.

The Second Circuit reversed. As to standing, the court ruled that the plaintiffs sufficiently pleaded injury, causation, and redressability under competitor-standing theory: "[t]he complaint, supported by expert declarations, alleges that . . . unlawful market conduct skew has caused Plaintiffs economic harm in the form of lost patronage from government entities, and that such harm will continue in the future"; "[t]he complaint adequately pleads a competitive injury of lost patronage directly traceable to the fact that the President's allegedly illegal conduct induces government patrons of the hospitality industry . . . to patronize Trump establishments in favor to Plaintiffs' establishments"; and "[b]ecause Plaintiffs have successfully alleged a plausible likelihood that President Trump's conduct caused their injuries, and the injury is ongoing, it logically follows that [injunctive relief] would redress their injury--at least to some extent, which is all that Article III requires."

As to the zone of interests, the court first held that the Supreme Court recently ruled that zone of interests is not a test of Article III standing. But the court said that in any event, the plaintiffs fell within it: "Without exception, the Court has held that a plaintiff who sues to enforce a law that limits the activity of a competitor satisfies the zone of interests test even though the limiting law was not motivated by an intention to protect entities such as plaintiffs from competition."

As to the political question issue (which the President did not argue at the Second Circuit), the court said that the district court erred in holding that under the Emoluments Clauses "Congress is the appropriate body to determine whether, and to what extent, [the President's] conduct unlawfully infringes on that power." Instead, the court held that under the plain language of the Emoluments Clauses, if Congress doesn't consent to an emolument, it's a violation. And it's the role of the courts to judge just such violations.

As to ripeness (which the President also did not argue), the court said that the district court erred in relying on the prospect of future congressional action and on the reasoning of Justice Powell's concurrence in Goldwater v. Carter. The court held that this case is distinguishable: Goldwater involved an inter-branch dispute over inter-branch powers; but this case simply involves an allegation that the President's private conduct is illegal. "There is no claim on the part of the Congress, or any of its members, that the President's private conduct of his business affairs usurps power allocated to Congress by the Constitution."

Judge Walker dissented, arguing that the plaintiffs lacked standing, consistent with the Fourth Circuit's approach.

Ninth Circuit Retains Injunction Against Trump Asylum Poilcy, but only in Ninth Circuit

UIC John Marshall Law School

The Ninth Circuit on Friday declined to stay a district court injunction against the Administration's "Asylum Eligibility and Procedural Modifications" rule, but limited the injunction to the Ninth Circuit.

The ruling allows the district court to develop a more complete record that would support a nationwide injunction. But at the same time, the motions panel also set a briefing schedule and put the case on the December 2019 argument calendar.

In all, this means (1) that the administration cannot enforce its new asylum rule in the Ninth Circuit (but it can enforce it elsewhere, at least for now), (2) that the district court can nevertheless develop a record that would support a nationwide preliminary injunction, and issue such an injunction, even as the appeal is pending at the Ninth Circuit, and (3) the case will go to the Ninth Circuit on the merits later this year.

The court started by noting that the Administration has "not made the required 'strong showing' that they are likely to succeed" on its claim that the district court erroneously concluded that the asylum policy likely violated the Administrative Procedure Act. It went on to say, though, that the record before the district court didn't justify a nationwide injunction:

Here, the district court failed to discuss whether a nationwide injunction is necessary to remedy Plaintiffs' alleged harm. Instead, in conclusory fashion, the district courts stated that nationwide relief is warranted simply because district courts have the authority to impose such relief in some cases and because such relief has been applied in the immigration context. The district court clearly erred by failing to consider whether nationwide relief is necessary to remedy Plaintiffs' alleged harms. And, based on the limited record before us, we do not believe a nationwide injunction is justified.

Judge Tashima dissented, arguing that the majority impermissibly parsed the district court record to reconsider the nationwide injunction, and that the briefing and argument order is in tension with the district court potentially developing a record that permits a nationwide injunction.

The order comes as the practice of issuing nationwide injunctions, in general, is under increased scrutiny. The Ninth Circuit's approach here is cautious with regard to a nationwide injunction, but at the same time it leaves open plenty of room for the district court to develop a more complete record that would support such an injunction. And the panel held no punches when it said that the Administration hasn't made the "strong showing" required to stay the district court's injunction.

Check it Out: Blackman and Tillman on Wall Funding, Emoluments, and Courts' Equitable Jurisdiction

Check out Josh Blackman and Seth Barrett Tillman's piece at The Volokh Conspiracy on why the federal courts lack equitable jurisdiction in the border wall funding case and the emoluments challenge. In short: The plaintiffs don't state a cause of action (that would have been available under the equitable jurisdiction of the High Court of Chancery in England in 1789).

Blackman and Tillman elaborate on the argument (and others) in this amicus brief, in the Fourth Circuit emoluments case.

Here's from Volokh:

In order to invoke a federal court's equitable jurisdiction, Plaintiffs cannot simply assert in a conclusory fashion that the conduct of federal officers is ultra vires, and, on that basis, seek equitable relief. "Equity" cannot be used as a magic talisman to transform the plaintiffs into private attorneys general who can sue the government merely for acting illegally. Rather, in order to invoke the equitable jurisdiction of the federal courts, plaintiffs must put forward a prima facie equitable cause of action.

***

A plaintiff's mere request for equitable or injunctive relief does not invoke a federal court's equitable jurisdiction.

***

[Otherwise, plaintiffs' approach] would open the courthouse door to every plaintiff with Article III standing, who asserts that a federal official engaged in illegal conduct.

D.C. Circuit Says Diversity Visa Case Not Moot (even after Trump v. Hawaii)

Steven D. Schwinn, John Marshall Law School

The D.C. Circuit ruled today in Almaqrami v. Pompeo that plaintiffs' claim against the government for denying them "diversity visas" was not moot, even though the plaintiffs are from countries covered by President Trump's travel ban, upheld under Trump v. Hawaii. The ruling sends the case back to the district court for a decision on the merits. By the plaintiffs' own reckoning, however, even a win (alone) wouldn't guarantee their admittance to the United States.

The plaintiffs, nationals of Iran and Yemen, won the 2017 diversity visa lottery. But they were denied visas pursuant to a State Department Guidance Memo, instructing consular officers about how to evaluate diversity visa applications in light of Trump v. Int'l Refugee Assistance Project (the Court's earlier ruling allowing President Trump's executive order (2) to take effect while the Court considered appeals of the preliminary injunctions against the travel ban). They sued, arguing that the relevant section of the Immigration and Nationality Act authorized the President to restrict only entry, not visas, and that their denial violated the INA provision that bans discrimination by nationality.

Just before the end of Fiscal Year 2017, the district court ordered State to "hold those [unused diversity] visa numbers to process [p]laintiffs' visa applications in the event the Supreme Court finds [EO-2] to be unlawful." (Recall that the President replaced EO-2 with the (third) version of the travel ban that ultimately went to the Court.)

After the Court upheld the travel ban in Trump v. Hawaii, the government moved to dismiss the case as moot, arguing that EO-2 and the guidance memo under which the consular officers denied the plaintiffs visas were now expired, and that the district court's order was conditioned on the Court ruling that EO-2 was unlawful (which didn't happen).

The district court accepted this argument and dismissed the case as moot, but the D.C. Circuit reversed.

The D.C. Circuit ruled that because the district court issued its order before the end of Fiscal Year 2017, it could still grant relief to the plaintiffs (by ordering State to grant the visas). As to that language that seems to condition relief on the Court striking the travel ban (which of course it didn't), the D.C. Circuit said that the district court's order could be read to mean (1) that State must hold unused diversity visas to enable a later court judgment and (2) that a specific judgment would issue if the Court ruled a certain way. (1) allows the district court to order State to issue the visas; (2) would've required it.

Moreover, the court said that the plaintiffs could still get the relief they sought. That's because the district court might agree with them that the travel ban only applied to entry, not visas, and that the INA prohibits discrimination in issuing visas by nationality--even under Trump v. Hawaii. The court didn't opine on those questions, however; instead, it sent the case back to the district court for a ruling on them.

A win in the district court (or on appeal) could mean that the plaintiffs get their visas, and even get consideration under exceptions to the travel ban. But actual entry will require more: a decision that they meet an exception to the travel ban.

District Court Rules Brewer's Government Shutdown Claim Moot

Steven D. Schwinn, John Marshall Law School

Judge Christopher R. Cooper (D.D.C.) dismissed as moot a case by Atlas Brew Works arguing that the government's inability to approve its beer label during the government shutdown earlier this year violated its First Amendment right to free speech. In particular, Judge Cooper ruled that Atlas's claim didn't meet the mootness exception for cases that are "capable of repetition but evading review."

The case, Atlas Brew Works v. Barr, arose during the government shutdown, when, because of a lack of appropriated funds, the Alcohol and Tobacco Tax and Trade Bureau (in Treasury) couldn't approve Atlas's pending application for a label, as required by the Federal Alcohol Administration Act. (The FAA requires Bureau approval of a label before a brewer can distribute its beer in interstate commerce. It provides criminal penalties for violators.) Atlas filed suit, arguing that the government's failure to approve its pending label infringed on its right to free speech, because the lack of approval meant that it couldn't legally distribute its seasonal beer, which, without an approved label, would go stale. (Atlas put it this way: "[i]t cannot be denied the right to speak for lack of meeting an impossible condition.") Atlas sought a temporary restraining order and preliminary injunction preventing the Justice Department from enforcing the FAA's criminal sanctions against it.

Once the shutdown ended, the government moved to dismiss the case as moot. Yesterday, the court agreed.

The court ruled first that Atlas's claim couldn't survive as a challenge to the government's policy, because, in short, there's no ongoing policy behind the shutdown that would infringe on Atlas's free speech.

The court ruled next that Atlas's claim was not capable of repetition but evading review. Judge Cooper explained:

To recap the boxes that must be checked for this dispute to recur: a lapse in appropriations must happen; the lapse must affect the Treasury Department; the lapse must last long enough to actually cause a shutdown; Treasury must respond to the shutdown by shuttering the [beer-label approval process under the FAA]; and Atlas must have a [label] application pending at the time the shutdown begins or file one shortly thereafter. In the Court's view, the combination of these contingencies takes this case beyond the limits of the capable-of-repetition exception to mootness.

District Court Tosses DNC's Case Against Russia, Trump Campaign for Hacking its Computers, Distributing Stolen Materials

Steven D. Schwinn, John Marshall Law School

Judge John G. Koeltl (S.D.N.Y.) today dismissed the Democratic National Committee's lawsuit against the Russian Federation, the Trump Campaign, and individuals associated with the campaign for hacking into DNC computers in the 2016 presidential election and distributing stolen material through WikiLeaks.

The ruling ends the case, unless and until the DNC appeals.

The DNC brought the case under a variety of federal statutes, including RICO, and state common law trespass and conversion. The DNC alleged that Russia unlawfully hacked DNC computers and distributed stolen material, and that this benefited the Trump campaign, which "welcomed" the help.

The court dismissed the claims against Russia under the Foreign Sovereign Immunities Act. (The court said that exceptions to the FSIA don't apply because not all of Russia's activities occurred within the United States.) It dismissed the claims against the other defendants under the First Amendment. Here's the short version why:

the First Amendment prevents such liability in the same way [under Bartnicki v. Vopper, ed.] it would preclude liability for press outlets that publish materials of public interest despite defects in the way the materials were obtained so long as the disseminator did not participate in any wrongdoing in obtaining the materials in the first place. The plausible allegations against the remaining defendants are insufficient to hold them liable for the illegality that occurred in obtaining the materials from the DNC.

So what about all the contacts between the defendants: Don't they show that the defendants "participated in wrongdoing"? The court said no: the DNC simply didn't plead sufficient facts to show this. 

The court rejected the DNC's attempt to distinguish or work around Bartnicki, ruling that the case doesn't permit a challenge for stolen trade secrets, or for "after-the-fact" coconspiracy to steal the documents.

The court ruled that there were other reasons to dismiss the case, based on some of the specific causes of action.

 

High Court Allows Border Wall Reprogramming Funding, Construction to Move Forward

Steven D. Schwinn, John Marshall Law School

The Supreme Court late Friday granted the administration's motion for a stay of the district court's permanent injunction, affirmed by the Ninth Circuit, prohibiting the administration from reprogramming funds to build a border wall. The ruling is a significant victory for President Trump. It means that the administration can go ahead with its plans to reprogram funds and build portions of the wall.

This ruling doesn't end the case. But it strongly suggests that any further ruling from the Court will also favor the administration.

The case, Trump v. Sierra Club, involves the Sierra Club's challenge to the administration's reprogramming of $2.5 billion from military accounts to build a border wall. The administration moved to reprogram funds after Congress granted the administration only $1.375 billion (of the $5.7 billion requested by the administration), and restricted construction to eastern Texas, for border wall construction. As relevant here, the administration announced that it would transfer $2.5 billion from Defense Department accounts to the Department of Homeland Security. In order to get the money in the right account, DoD had to transfer funds under Section 8005 of the DoD Appropriations Act of 2019. That section authorizes the Secretary of Defense to transfer up to $4 billion "of working capital funds of the Department of Defense or funds made available in this Act to the Department of Defense for military functions (except military construction)," so long as the Secretary determines that "such action is necessary in the national interest." The funds can be used "for higher priority items, based on unforeseen military requirements, than those for which originally appropriated and in no case where the item for which funds are requested has been denied by the Congress." 

The Sierra Club sued, arguing that the transfer violated the law, because wall funding wasn't "unforeseen" and because Congress had previously denied requested wall funding. The district court entered a permanent injunction, and the Ninth Circuit affirmed. The government filed an application for a stay with the Supreme Court.

A sharply, and ideologically, divided Court granted the stay. The Court (the majority comprised of Chief Justice Roberts and Justices Thomas, Alito, Gorsuch, and Kavanaugh) gave only this explanation in its short opinion: "Among the reasons is that the Government has made a sufficient showing at this stage that the plaintiffs have no cause of action to obtain review of the Acting Secretary's compliance with Section 8005." This probably refers to the government's argument that the Sierra Club wasn't within the "zone of interests" protected by Section 8005, and therefore wasn't a proper party to bring the case. It may also refer to the government's argument that the district court and the Ninth Circuit misread the "unforeseen" and "has been denied by the Congress" language in Section 8005. (The government offered a much narrower interpretation of those phrases than the lower courts adopted.)

The Court left the door open for Supreme Court review on a regular writ of certiorari. But given the ruling and alignment in its order granting the stay, it seems unlikely that the Court will rule against the administration.

Justices Ginsburg, Sotomayor, and Kagan wrote (without explanation) that they would have denied the stay. Justice Breyer offered a middle ground: allow the administration to move forward with the contracts it needs to build under its strict timeline, but not allow it to actually begin construction until we get a final say-so from the Court.

Fourth Circuit Tosses D.C., Maryland Emoluments Suit Against Trump for Lack of Standing

Steven D. Schwinn, John Marshall Law School

The Fourth Circuit ruled that Maryland and D.C. lacked standing to pursue their case against President Trump that he's violating the Foreign and Domestic Emoluments Clauses. The decision reverses a district court ruling and dismisses the case.

We last posted here and here.

The ruling means that this case goes away. And while the court only ruled on standing, it also noted that the plaintiffs faced plenty of other obstacles in bringing an emoluments case against the president--everything from the justiciability of emoluments claims to presidential immunity. In other words, even if there's some plaintiff with standing to bring this kind of suit, they'll face serious headwinds for other constitutional reasons.

The ruling is especially notable because it came on the president's motion for mandamus. Mandamus is an extraordinary form of relief, and the standard is quite high. Still, the court ruled that the president met it, underscoring just how wrong the Fourth Circuit thought the district court's ruling was.

The Fourth Circuit held that the plaintiffs lacked standing based on harm to their proprietary interests in their own convention centers when the Trump International Hotel siphons off business from them. According to the court, one problem was that the plaintiffs couldn't show that any violation of the Emoluments Clauses caused their harm:

To begin, the District and Maryland's theory of proprietary harm hinges on the conclusion that government customers are patronizing the Hotel because the Hotel distributes profits or dividends to the President, rather than due to any of the Hotel's other characteristics. Such a conclusion, however, requires speculation into the subjective motives of independent actors who are not before the court, undermining a finding of causation.

Another problem was redressability--that the plaintiffs' requested relief wouldn't redress their harm:

And, even if government officials were patronizing the Hotel to curry the President's favor, there is no reason to conclude that they would cease doing so were the President enjoined from receiving income from the Hotel. After all, the Hotel would still be publicly associated with the President, would still bear his name, and would still financially benefit members of his family.

The court next rejected the plaintiffs' claims of parens patriae standing to protect the economic interests of their citizens. The court said that these claims ran into exactly the same problems that the plaintiffs' own proprietary-harm claims ran into--no causation, no redressability.

Finally, the court rejected the plaintiffs' claim that they suffered an injury to their quasi-sovereign interests--that "[t]heir injury is the violation of their constitutionally protected interest in avoiding entirely pressure to compete with others for the President's favor by giving him money or other valuable dispensations" and that "it is the opportunity for favoritism that disrupts the balance of power in the federal system and injures the District and Maryland." The court said simply that "[t]his alleged harm amounts to little more than a general interest in having the law followed"--not enough for standing.

SCOTUS Finds Partisan Gerrymandering Non-Justiciable Political Question

Professor Ruthann Robson, City University of New York (CUNY) School of Law

In its opinion in Rucho v. Common Cause, consolidated with Lamone v. Benisek, a sharply divided United States Supreme Court decided that the judicial branch has no role to play in challenges to redistricting based upon partisan gerrymandering.

Recall that Rucho involved the constitutionality of partisan gerrymandering in North Carolina. The major question raised by the arguments was whether the courts have any role in protecting voters from partisan gerrymandering; Recall also that in an almost 200 page opinion, the three judge court resolved the issues of justiciability and standing in favor of the plaintiffs and held that the redistricting violated equal protection. 
Recall that Lamone involved the constitutionality of partisan gerrymandering in Maryland. The oral argument centered the First Amendment, but equal protection doctrine did surface in the context of comparing racial gerrymandering which is analyzed under the Equal Protection Clause. 

And also recall that while the Court had previously taken on the issue of partisan gerrymandering, it dodged answering the ultimate question. Today, the Court's 5-4 decision makes that dodge permanent for all federal courts by holding that the questions is a nonjusticiable political question.

Writing for the Court, Chief Justice Roberts — joined by Justices Thomas, Alito, Gorsuch, and Kavanaugh — held that challenges to partisan gerrymandering involve a political question because they lack “judicially discoverable and manageable standards for resolving them, citing Baker v. Carr (1962).  The majority then rejects all the "tests" (quotation marks in original) for resolving the issue. (Recall that Chief Justice Roberts's expressed skepticism about developing standards in the oral arguments on an earlier partisan redistricting case, Gill v. Whitford, calling the political science of redistricting "gobbledygook").  It is not that there is no relief, the majority concludes.  While partisan gerrymandering is "incompatible with democratic principles," as the Court had previously stated in Arizona State Legislature v. Arizona Independent Redistricting Comm’n (2015), and the majority opinion "does not condone excessive partisan gerrymandering," the remedy is in the state courts. Or Congress might pass a law to address the matter, citing as an example the Fairness and Independence in Redistricting Act Bill, although the Court does not express a view on this or other pending proposals.

In dissent, Justice Kagan — joined by Justices Ginsburg, Breyer, and Sotomayor — begins by stating "For the first time ever, this Court refuses to remedy a constitutional violation because it thinks it is beyond its judicial capabilities."  Kagan's impassioned dissent, as long as the majority opinion, and parts of which she read from the bench (a rare practice for her), explains that democracy is at stake and if "left unchecked, gerrymanders like the ones here may irreparably damage our system of government.  The dissenting opinion suggests that the majority has not paid sufficient attention to the constitutional harms at the core of these cases, and discusses the cases, concluding that no one thinks this is how democracy should work, and that in the past the Court has recognized the infringement to individual rights partisan gerrymandering inflicts.  As for standards, the four dissenters argue that courts have developed a framework for analyzing claims of partisan gerrymandering, including the workable standard the three judge courts in Rucho and Lamone used.  As for state courts, Kagan's opinion asks "what do those courts know that this Court cannot? If they can develop and apply neutral and manageable standards to identify unconstitutional gerrymanders, why couldn't we?"

Given that former-Justice Kennedy had a central role in arguing for a First Amendment right to challenge partisan gerrymandering, his retirement and replacement by Justice Kavanaugh made the majority for an opinion that Chief Justice Roberts had seemingly long wanted.

 

Ninth Circuit Lets Environmental "Citizen Suit" Move Forward

Steven D. Schwinn, John Marshall Law School

The Ninth Circuit ruled today that a lower court had jurisdiction over environmental organizations' lawsuit against the United States Forest Service under the "citizen suit" provision in the Resource Conservation and Recovery Act.

The ruling reverses the lower court decision on this point and remands the case for further proceedings related to the merits.

The case, Center for Biological Diversity v. United States Forest Service, started when the Center and others sued the USFS for its failure to address the use of lead ammunition by hunters in Arizona's Kaibab National Forest. According to the plaintiffs, scavenger species, including the California condor, suffer from lead poisoning after they ingest lead ammunition left in animal carcasses by hunters. The Center sought declaratory and injunctive relief pursuant to the RCRA's citizen-suit provision.

The district court dismissed the case, ruling that it amounted to a request for an advisory opinion. The Ninth Circuit reversed.

The Ninth Circuit held that the case was not an advisory opinion. The court said that the Center's challenge presents a "genuine adversary issue between the parties," and that "a ruling in the Center's favor would require USFS to mitigate in some manner--not necessarily by banning the use of lead ammunition in the Kaibab--the harm caused by spent lead ammunition, thereby leading to a change in USFS's operation of the Kaibab."

The court rejected the lower court's conclusion that any judicial ruling would amount only to a recommendation. That's because the RCRA specifically grants the courts jurisdictions over this type of claim and relief, including jurisdiction "to restrain any person who has contributed or who is contributing to [a substantial endangerment to health or the environment], to order such person to take such other action as may be necessary, or both." The court also rejected the lower court's conclusion that any order "would be an improper intrusion into the domain of the USFS." The court said that this is exactly what the RCRA authorizes, and that this position, if accepted, "would preclude courts from issuing injunctions against expert administrative agencies, which, of course, we regularly do."

The court also rejected the USFS's argument that the courts should "declin[e] jurisdiction out of deference to the policy choices of the other branches of the federal government." The court said that the RCRA grants it jurisdiction, and that it has a "virtually unflagging obligation . . . to exercise the jurisdiction given [it]."

The case goes back to the district court for further proceedings related to the merits.

First Circuit Says Massachusetts Has Standing to Challenge Contraception Mandate Exemptions

Steven D. Schwinn, John Marshall Law School

The First Circuit ruled that the state of Massachusetts has standing to sue the Trump administration to halt implementation of its rules establishing religious and moral exemptions to the Affordable Care Act's "contraception mandate."

Those rules allow covered employers to get an exemption from the ACA's requirement that employers provide certain contraceptive services.

The mandate is already subject to nationwide injunctions from other cases (in which the courts have also found valid standing for challenging states; we posted most recently here.) This is just the latest case to move forward.

The court said that Massachusetts sufficiently demonstrated a fiscal harm. Here's why: (1) the state demonstrated that some employers in the state are likely to use the exemptions and drop employees from contraception coverage; (2) the state demonstrated that at least some of those employees are likely to turn to the state for contraception and related services; and (3) this "cause and effect" chain is based on "probable market behavior."

The court also ruled that the state showed causation and redressability--the former for the reasons above; the latter because halting the exemptions would also halt this chain of causation.

The ruling is only preliminary. It only allows the case to move forward on the merits. But as we said: the rules are already subject to nationwide injunctions, and this case won't directly affect those injunctions.

Kansas Supreme Court Finds Fundamental Right to Abortion Under State Constitution

Professor Ruthann Robson, City University of New York (CUNY) School of Law

In its extensive opinion in Hodes & Nauser v. Schmidt, the Supreme Court of Kansas held that the right to abortion in protected under its state constitution and regulations of the fundamental right should be subject to strict scrutiny.

The per curiam opinion is exceedingly clear that the opinion rests on independent state constitutional grounds and that it is interpreting §1 of the Kansas state Constitution, adopted in 1859:  "All men are possessed of equal and inalienable natural rights, among which are life, liberty, and the pursuit of happiness." The court specifically finds that this provision creates judicially enforceable "natural rights" such as the right to "personal autonomy" to make decisions regarding our bodies, health care, family formation, and family life, including a woman's right to decide whether to continue a pregnancy.

Having held that the right to an abortion is encompassed within the fundamental right bodily autonomy, the Kansas Supreme Court held that strict scrutiny should apply, which the court articulated as prohibited the state from restricting that right unless it can show it is doing so to further a compelling government interest and in a way that is narrowly tailored to that interest.

At issue in the case is Kansas S.B. 95, passed in 2015, now K.S.A. 65-6741 through 65-6749, which prohibits physicians from performing a specific abortion method referred to in medical terms as Dilation and Evacuation (D & E) except when "necessary to preserve the life of the pregnant woman" or to prevent a "substantial and irreversible physical impairment of a major bodily function of the pregnant woman."

The trial court had issued a preliminary injunction, which the Kansas Supreme Court upheld, but remanded the case for a fuller evidentiary hearing applying strict scrutiny.

via & caption: Kansas Supreme Court
Seated left to right: Hon. Marla J. Luckert, Hon. Lawton R. Nuss, Chief Justice; Hon. Carol A. Beier.
Standing left to right: Hon. Dan Biles, Hon. Eric S. Rosen, Hon. Lee A. Johnson, and Hon. Caleb Stegall. 

In a concurring opinion, Justice Dan Biles argued that the majority should be more explicit in articulating how strict scrutiny should be applied in the abortion context, suggesting what "our state test should look like using an evidence-based analytical model taken from Whole Woman's Health v. Hellerstedt" (2016).  Justice Biles provided a very detailed roadmap that would be attractive to the trial court. Justice Biles also placed the decision within developments in state constitutional law on abortion:

It is also worth mentioning our court has not gone rogue today. By my count, appellate courts in 17 states have addressed whether their state constitutions independently protect a pregnant woman's decisions regarding her pregnancy from unjustifiable government interference. Of those, 13 have plainly held they do. [citations omitted].

The sole dissenting Justice of the seven Justices of the Kansas Supreme Court (pictured above) was Justice Caleb Stegall, who relied on numerous dissenting opinions in both the United States Supreme Court and Kansas Supreme Court. He began his opinion by stating "This case is not only about abortion policy—the most divisive social issue of our day—it is more elementally about the structure of our republican form of government." In essence, he considers the majority to be taking an activist stance. The majority opinion does devote more than a little attention to refuting and engaging with the dissent's arguments.

Because the case cannot be reviewed by the United States Supreme Court (given that the state's highest court decided it on the independent ground of its state constitution, unless it is argued it infringes on another constitutional right), subsequent constitutional law issues will be concentrated on what happens in the trial court and what might happen in other states. 

District Court Tosses Challenge to Capital Post-Conviction Counsel Regs

Steven D. Schwinn, John Marshall Law School

Judge Reggie B. Walton (D.D.C.) ruled that plaintiffs lacked standing to challenge federal regulations that specified a process for certification of state capital counsel in post-conviction proceedings. The ruling means that the regs stay on the books, unless and until a plaintiff who can demonstrate a concrete harm brings a challenge. 

Judge Walton's ruling follows a 2016 Ninth Circuit ruling by similar plaintiffs against the same regs.

The case tests DOJ's 2013 regs to certify state's mechanism for providing counsel to indigent prisoners in state postconviction proceedings. Under the Antiterrorism and Effective Death Penalty Act of 1996, if a state provides a mechanism for counsel, and gets it certified by DOJ, then (1) the capital prisoner gets an automatic stay from execution while postconviction and federal habeas proceedings are pending, (2) the statute of limitations for filing a federal habeas petition is shortened from one year to six months from the date of final judgment of the state courts on direct appeal, and (3) federal courts have to give priority status to the habeas case and resolve it within time periods set by statute.

DOJ implemented regs in 2013 to set standards and a process for DOJ certification of a state mechanism. (Again, certification would trigger the three things above, including the compressed time to file a federal habeas petition.) The regs allow the AG to "determine the date on which the state established its mechanism." And they include a retroactivity provision: "The certification is effective as to the date the Attorney General finds the state established its adequate mechanism; as this date can be in the past, a certification decision may be applied retroactively." 

Under the plain language of AEDPA and the regs, the AG's determination of the certification date--especially a retroactive determination--could throw a serious curve ball at capital attorneys and prisoners in the postconviction pipeline, by suddenly (or even retroactively) shortening their deadline. Even without formal certification (yet), attorneys that represent capital prisoners in postconviction cases have to adjust their practices in accepting new clients.

So when Texas applied for certification, but before it received certification, the Texas Defender Service and individual prisoners sued to halt and set aside the regs. But the court dismissed the case for lack of standing, and lack of ripeness.

Applying Havens Realty Corp. v. Coleman, the court held that

because "TDS's mission is to establish a fair and just criminal justice system in Texas" and a significant aspect of TDS's work includes "represent[ing] death-sentenced prisoners in post[]conviction proceedings in federal court," the 2013 Regulations--particularly the provision allowing for the potential retroactive application of certification--is "'at loggerheads' with [TDS's] mission-driven activities."

But "TDS's position that it has been 'forced to expend substantial resources to prepare its comments [to Texas's petition]' and that its staff 'divert[ed] their attention from their ordinary responsibilities,' fails to satisfy the second prong of injury-in-fact under Havens because TDS has not shown that preparing comments to advocate against Texas's certification was an 'operational cost[] beyond those normally expended to carry out its advocacy mission.'"

As to the individual plaintiffs, the court held that the 2013 regs weren't aimed at them, and that their rights therefore could only "be affected indirectly, if the sentencing state requests certification and if the Attorney General finds that the state's capital-counsel mechanism comports with" the Act and regs. "The 2013 Regulations therefore do not have the coercive impact necessary to confer standing on the individual plaintiffs to bring their preenforcement challenge to the 2013 Regulations."

The court also ruled that the plaintiffs' claims weren't ripe for review.

D.C. Circuit Says Prisoner's Equitable Claims are not Moot, Even After Transfer

Steven D. Schwinn, John Marshall Law School

The D.C. Circuit ruled that a federal prisoner's civil rights claims didn't become moot simply because he was transferred to another prison. The ruling goes against the general principle that a prisoner's "transfer or release from a prison moots any claim he might have had for equitable relief arising out of the conditions of confinement in that prison." According to the D.C. Circuit, that's because this prisoner alleged that he had been subject to the practices in different facilities, and because he alleged a policy or practice of violating regulations that would apply to him in any facility.

The case, Reid v. Hurwitz, arose when federal prisoner Gordon Reid alleged that federal prison officials failed to deliver his magazine subscriptions and deprived him of outside exercise during his repeated stays in the special housing unit, and deprived him of meaningful access to administrative remedies. Importantly, he alleged that with each violation, prison officials cited "BOP policy." Reid sought declaratory, injunctive, and mandamus relief.

The district court dismissed the case, citing the "normal" rule that a prisoner's claims for equitable relief become moot when he or she leaves the prison. But the D.C. Circuit reversed, holding that Reid's harms are "capable of repetition but evading review." The court wrote that Reid alleged that he was in the SHU in different facilities, that he suffered the same harms in different SHUs, and that prison officials gave the same explanation: "policy." Add those up, and you get "capable of repetition but evading review." Here's the court:

The BOP's argument ignores that Reid's complaint identifies not only single instances but also BOP's alleged policy or practice or violating its own regulations to the detriment of Reid. In particular, Reid has alleged three key facts. First, he has been housed at eight different SHUs since 2008. Second, he has suffered a uniform set of deprivations at each SHU that contradict BOP's written regulations. Third, each time he has suffered a deprivation, he alleges that BOP officials justify the deprivations based on "BOP policy." Having been placed in a SHU in myriad different BOP institutions, subject each time to a restriction allegedly imposed under a purported BOP policy or practice contravening BOP regulations, Reid has proffered a logical theory that the challenged actions reasonably will recur despite his current transfer out of the SHU.

***

Both the District Court and the government on appeal have failed to grapple with Reid's claim that he was repeatedly subjected to deprivations in the SHU due to an ongoing policy or practice of the BOP.

At the same time, the court acknowledged that there may be several other reasons for the district court to dismiss the case on remand.

Judge Katsas dissented, arguing that "[w]e should reject Reid's conclusory allegation that BOP has implemented unlawful nationwide policies. And without such unifying policies, the specific disputes alleged here are not capable of repetition."